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Split High Court Taking Up Role of Parents in Abortion

November 03, 1987|DAVID G. SAVAGE | Times Staff Writer

CHICAGO — A teen-ager who gets pregnant usually faces at least two tough questions: Should she get an abortion and should she tell her parents? Lawmakers in Illinois and 21 other states, including California, want to require that she may not do the one without doing the other.

Today, the Supreme Court--apparently divided 4 to 4 on the abortion issue and with one seat vacant--will hear attorneys for Illinois argue for the authority to ensure that parents have time for "meaningful consultation" with their daughter before she has an abortion.

Last year, a federal appeals court here rejected the Illinois law before it went into effect, concluding that a required notification of both parents, followed by a 24-hour wait, unduly hindered the girl's right to end her pregnancy. In September, another appeals court threw out Minnesota's parental notice law after a trial court found that it blocked abortions for teen-agers from troubled homes.

Supporters of those laws say they do nothing more than give parents a right to counsel their daughters at a difficult time.

"This is an attempt to allay a lifetime of nightmares for a teen-ager as to whether she made the right decision," said John T. O'Connell, a Democratic state legislator and sponsor of the Illinois law. "The parents have an overriding interest in being a part of that decision, and the state has an obligation to protect that interest."

Critics, maintaining that state laws cannot force families to communicate better, charge that their real purpose is to prevent teen-agers from getting abortions.

'My experience is that most girls will talk to their parents about it. We encourage them to do so. But some of them can't, and they won't," said Patricia Dougherty, director of education for Planned Parenthood in Chicago. "They (anti-abortionists) are just trying to make it harder for them. They can't stop abortions for most women, so they have gone after the women with the least political clout: poor women and teens."

The Supreme Court at various times has offered support for both sides of this argument.

In 1973, when the court first declared that women have a constitutional right to an abortion in the landmark case of Roe vs. Wade, the justices said also that the right "is not absolute." Moreover, they said, "some state regulation . . . is appropriate" to protect the health of the patient and the unborn child.

Conflicting Principles

In the years since then, many states have tried out a variety of regulations, most of which have been struck down by the court as barely disguised attempts to prohibit abortion. The high court, in half a dozen abortion rulings since Roe vs. Wade, has put forth two often conflicting principles: first, all females have a constitutional right to get an abortion during the first months of pregnancy and, second, parents and state officials have a right to influence that decision for minors.

Justice Lewis F. Powell Jr. was the swing vote in those cases. He voted with the liberal majority to ensure women the right to end their pregnancies but switched to the conservative side in two rulings that said parents deserve a voice when their daughters seek an abortion.

Powell has since retired, and the remaining justices appear evenly split on the issue. Four of them--William J. Brennan Jr., Thurgood Marshall, Harry A. Blackmun and John Paul Stevens--regularly vote in favor of a woman's right to an abortion. Blackmun, in particular, has contended that the decision to end a pregnancy is best left to a woman and her doctors.

Four Support Regulation

Meanwhile, the four other justices--Byron R. White, Sandra Day O'Connor, Antonin Scalia and Chief Justice William H. Rehnquist--believe that the states have broad power to regulate or prohibit abortion.

If there is a swing vote now, it may be Stevens. In past rulings, he has indicated that he would support laws requiring a notice to parents but not their consent.

About 1.5 million abortions are performed in the United States each year, one-third of which are said to involve teen-age girls. Right-to-life groups say more than 80% of adults polled believe that parents should have a role in deciding whether their daughters have an abortion.

In the Illinois case, the court must weigh the interest of parents against the rights of their daughters.

In 1983, a large majority of the Illinois Legislature concluded that "immature minors often lack the ability to make fully informed choices that take account of the immediate and long-range consequences" of having an abortion. To encourage "parental consultation," the state said that a doctor may not perform an abortion on a minor until he has notified both parents and waited 24 hours.

May Go to Juvenile Court

A girl who does not wish to tell her parents may go to a juvenile court judge, who must decide whether she is "mature and well-informed enough to make the abortion decision on her own."

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